Fair Elections Act’s change to ‘vouching’ for voters without ID could be unconstitutional, critics say

A provision of the Conservatives’ new Fair Elections Act that would stop “vouching” for voters without ID may be unconstitutional, critics said on Sunday, raising more questions about the contentious bill as it heads to committee for review this week.

If the act passes unamended, voters without valid identification would no longer be able to get someone they know to swear to their identity, potentially disenfranchising thousands.

That provision is likely unworkable because it conflicts with court rulings about the Charter right to vote, Adam Goldenberg, a former Michael Ignatieff speech writer who is now a law student at Yale, wrote in a blog post on Sunday.

In 2012, in a ruling on a court challenge that sought to throw out the election of Conservative Ted Opitz, the MP for Etobicoke Centre, the top court put a lot of weight on Section 3 of the Charter of Rights and Freedoms, which says “every citizen of Canada has the right to vote in an election of the members of the House of Commons.”

In a split decision, the court ruled that the right to vote is more important than “the procedures used to facilitate and protect that right.”

Pierre Poilievre, the minister of state for democratic reform, has been pointing to irregularities identified by Elections Canada in votes cast by people who were vouched for at the polls. Goldenberg argues that the top court made it clear that the right to vote is more important than the paperwork.

The likely result is another court challenge. “This time, without vouching, the voter-identification restrictions may not survive,” Goldenberg writes.

James Sprague, who was senior general counsel to Elections Canada until he retired in 2006, said Sunday that Goldenberg is likely right.

“Given the reported faults that took place respecting vouching … the infringement of the constitutional right to vote may not be justifiable,” he said. “You are essentially taking away an option to vote from citizens because some poll officers were poorly trained.”

Poilievre did not comment Sunday on the constitutionality of the provision, but NDP MP Craig Scott, the critic for democratic reform, said that it is a problem.

“The Supreme Court’s emphasis on not using irregularities ?to disenfranchise voters, plus specific reasoning found in the judgment, make very clear that the Charter right to vote would be infringed by eliminating vouching — especially taking into account the other democracy-attacking elements of C-23,” he said.

Marc Mayrand, the chief electoral officer, told CTV’s Question Period program Sunday that the measure would impact more than 100,000 Canadians and disproportionately affect young people, seniors and aboriginals living on reserves.

“For some electors, it’s often quite difficult and almost impossible to produce the proper pieces of document to identify themselves and vouching was designed to alleviate these and allow these citizens to cast a ballot,” Mayrand said.

He pointed out that young people are “increasingly mobile” and often don’t have up-to-date documentation with their current address — something that would prevent them from voting if the Tories’ bill goes through unchanged. In addition, Mayrand said seniors in facilities and aboriginals on reserves could also be prevented from casting ballots.

“On reserves there’s not always residential addresses. We need to think about the living conditions there,” he said.

Poilievre took to Twitter after the program to defend the elimination of vouching. He pointed out that there are currently 39 forms of ID that can be used to vote and that vouching can increase the risk of election errors.

Sprague said the wide variety of acceptable ID is a good part of the act.

“Far more effort went into ensuring a broad and accessible universe of IDs for the Canadian legislation than appears to have been gone into in designing some of the American efforts at acceptable ID,” he said.

The act, which was tabled on Tuesday, had only a few hours of debate in the House of Commons before the Conservatives moved to shut down debate and send it to committee.

MPs on the procedure and house affairs committee will meet on Tuesday to consider an NDP motion to have the committee travel across Canada to hear from citizens about the changes. The NDP is warning that the government may want to pass the bill without debate.

The NDP’s Scott said Sunday that he’s worried the government will debate behind closed doors on what kinds of hearings to hold.

Federal legislation is supposed to be reviewed by Justice Department lawyers to make sure it complies with the Charter, but Edgar Schmidt, a former drafter from Justice, is suing the government, claiming that since the 1990s the government has not been applying the test rigorously enough.